Sutter v. Rose

Mr. Chief Justice Phillips delivered the opinion of the court: All questions of fact in this case are settled by the judgments of the trial and Appellate Courts. We can only consider errors of law, if any arise, on the giving or refusal of instructions and the admission or refusal of testimony. Appellant urges as error the refusal of the trial court to give certain instructions asked by him, as defendant below. We find that in the Appellate Court appellant expressly waived discussion of any error in the refusal of instructions offered by himself, but contended that there was error in those given in behalf of appellee. Where errors are assigned in the Appellate Court which would cover supposed erroneous rulings of the trial court, and such errors are not argued nor the particular attention of the Appellate Court called to them, they will be held to have been waived and abandoned, and cannot be revived and raised in this court for the first time. Strodtmann v. County of Menard, 158 Ill. 155. Without incumbering this opinion with all the instructions of the plaintiff, nine in number, it is "sufficient to say that they instructed the jury on the general principle that even though the deed in question was not in the form anticipated and contained the assumption clause not intended by the grantee, yet if, after notice, he did nothing to disaffirm the contract thus imposed upon him he is estopped from setting up the fraud as against appellee. The rule is well established that a party who claims to have been defrauded must disaffirm the contract at the earliest practicable moment after having discovered the fraud, and place the other party in statu quo, or offer to do so; and if he remains silent, and continues to treat the property as his own, he will be held to have waived the objection, and will be as conclusively bound by the contract as if the fraud had not occurred. Morey v. Pierce, 14 Ill. App. 91; Hall v. Fullerton, 69 Ill. 448; Perry v. Pearson, 135 id. 218; Greemoood v. Fenn, 136 id. 146; Day v. Fort Scott Investment Co. 153 id. 293. The question as to whether or not appellant had notice of the clause in the deed which created the liability alleged in the declaration is one of fact, and has been settled by the judgments of the circuit and Appellate Courts. It appears that some ten months before this suit was commenced appellant had written to some parties in Wichita the following letter: 'June 13, 1892. 'Ratliff & Cone, Wichita. Kan. : “Gentlemen—In reply to yours of the 11th would say that we had a claim against C. H. Peckham, formerly of your city, which we sent to R. G. Dun & Co. for collection. Mr. Peckham made their attorney a proposition to take the land you inquire about in settlement of our claim, subject to a mortgage, we think, of about $1600. The attorney settled the claim as above, but instead of taking a second mortgage he took a deed of the property in the name of Adolph Sutter, for the firm of Sutter Bros., which was not according to our intentions, as we did not wish to assume any mortgage on this property and would not pay the mortgage at the present time. However, if you can get a chance to sell the property we are willing to sell our portion of it at a reasonable price, so let us know by return mail what the best offer is that you can get, and if it is all satisfactory we would be willing to close out our interest in the land. * * * ‘Yours very truly, Sutter Bros.” The question of fact having therefore been found by the Appellate Court that appellant had notice of the clause in the deed which created this obligation, and it being, under the law, his duty to disaffirm this contract at the earliest practicable moment after its discovery, the instructions given by the trial court on behalf of the plaintiff were proper. It is urged also by appellant that the court erred in not permitting the witness Adolph Sutter to explain the letter above quoted. We see no error of the trial court in this respect. The witness was permitted to give his version of the entire transaction, but not an explanation of his letter. He testified he had no knowledge of the conditions in the deed in question; that on receiving it he had placed it in his vault without examination, and he did not know, until the time of the commencement of this suit, of the particular clause in question or the legal effect of the clause as applied to himself. The letter was offered for the purpose of contradicting this testimony. The meaning of a letter cannot be varied by parol testimony. The extent to which the writer of a letter may be permitted to testify in regard thereto is to show t'he circumstances under which it was written, but he cannot testify as to his intention or purpose in writing it, and thereby avoid its effect as a statement or declaration of the facts contained in it. (Brant v. Gallup, 111 Ill. 487.) It is not proper to permit a party to testify what he meant by expressions used in a letter, or to say what he intended or what he did not intend by such expressions. The letter is the only proper evidence of these facts or what his meaning or intention was. (Flower v. Brumbach, 131 Ill. 646.) When the trial court, therefore, had permitted the appellant to testify as to all the facts within his knowledge concerning the entire transaction, except to give an explanation of the expressions used in his letter, no error was committed. As before stated, there are only two questions of record in this case which we can consider, and those are, the correctness of the instructions given on behalf of the appellee, and the refusal of the trial court to admit this testimony. On both of these questions we concur with the Appellate Court. There being no error, the judgment of the Appellate Court is affirmed. Judgment affirmed.